Scott Pilutik

I am an attorney and consultant living and working in Manhattan, focusing primarily on church/state constitutional law. I'm a recognized expert on the Church of Scientology organization. I also have strong interests in intellectual property law where it intersects with emerging media, and free speech.

Free Speech in Burning Theaters

No small amount of ink has been spilled over an alleged film that allegedly caused riots throughout pockets of the middle east, allegedly leading to the death of the US Ambassador to Libya, Chris Stevens, and some of his staff members. I hedge because from the start of this story so many facts have been up for grabs, even as to whether the film exists (or whether the full sum of the producers’ efforts was the 14-minute trailer that remains available on YouTube).

Starting with Mitt Romney’s ham-fisted and ill-timed public consternation over the Egyptian embassy’s paying short shrift to “American values,” the free speech question has been discussed pretty much everywhere, as it should be, given these facts. I consider myself a free speech absolutist and ultimately believe that the film is deserving of first amendment protection. The film.

But I also think that in promoting the film, the filmmaker–Nakoula Basseley Nakoula, and not Sam Bacile as he’d originally claimed–made statements that fall outside the first amendment and may be criminally actionable if it can be found that those statements furthered an intent to provoke lawless action, and that such lawless action was likely and imminent as a result of the speech (See Brandenburg v Ohio, 395 US 444 (1969)).

Intent, Likelihood, and Imminence.

Brandenburg’s requirement that violent provocation meet an “imminence” prong would seem to guarantee any film first amendment protection. Films, after all, take time to produce–imminent lawless action thus seems intrinsically impossible. Unless, perhaps, the film was designed in such a way that it would likely provoke violence at its mere showing–the film as time-bomb, with a payload of subliminal messages to cause ordinary viewers to spontaneously engage in knife fights. The direct cinematic equivalent of yelling FIRE! in a crowded theater, an analogy aided by its actually being a film. Obviously that’s not what happened here, and if this scenario was even possible it would have already occurred a few years back at the premiere of The Love Guru.

But what did happen here? And did what happen exceed first amendment protection?

Even the White House, which would stand to gain diplomatically if it had publicly asked YouTube to pull the trailer, declined to do so, instead asking YouTube to review whether the film comported with its Terms of Service (it did, and the video remains available). While this would appear to settle the first amendment question with respect to the film/trailer, it doesn’t fully put to rest the question of Nakoula’s free speech protection, especially after you drill down into the facts.

Just as the video had been gaining traction in the middle east and helped spur minor protests, helped along by the filmmakers’ (or presumably Nakoula’s) translating the trailer into Arabic, Nakoula was interviewed by the Associated Press and the Wall Street Journal as “Sam Bacile,” [and as PBS points out, shame on AP & WSJ for buying it, perpetuating it, and failing to fully own up to their role in it] which was the account name under which the video was uploaded to YouTube.

Nakoula, as “Bacile,” made two false statements: (1) that he, “Bacile,” was Jewish (Nakoula is a Coptic Christian), and (2) that the film had been principally financed by “100 Jewish donors.” It can be argued that these lies were intended to breathe air into the fire that had only just started. Whether these lies actually stoked the fire is a separate question, but not relevant to the question of Nakoula’s intent. In any case, Brandenburg’s foreseeability prong is satisfied because the presence of some connection between the speech and the resulting violence seems obvious here.

Steve Klein, a consultant to the film and himself a Coptic Christian, bolstered the notion that Nakoula’s intent was to provoke violence. After the protests had already resulted in at least one death, Klein stated that “We went into this knowing this was probably going to happen.”

Together, Klein’s concession and Nakoula’s lies, all which occurred just as protests against the film were percolating, diminish Brandenburg’s applicability because those statements occurred separate from the film, simultaneous with the protests morphing into violence.

The film/trailer itself is also indicative of Nakoula’s intent. As the film’s actors and crew have noted, the dialogue which would be most likely to offend Muslims is not uttered by the actors on screen but was rather dubbed in afterward.

“The original actors said one word, and then the producer and editing team (whom I don’t know) dubbed,” [an unidentified crew member] wrote. “It’s unmistakable that most dubbed portions are a different voice than the original actor.“

Now we don’t want judges answering the question What is Art? any more than we want them defining religion. So the fact that the film has scant artistic integrity, undermined further by the sloppy overdubbing, is of no matter with respect to the film’s speech protection. But it does speak to Nakoula’s intent, as he evidently saw the film production itself as a ruse, and a vehicle to deliver a message he seems to have intentionally omitted in discussions with the film’s crew and actors.

Those actors, and to a lesser extent the crew, surely would not have consented to work on a film if they had known beforehand that its producer intended to use the film–and necessarily, their names and likenesses–to provoke violence in the middle east. This opens the door to possible tort actions against Nakoula by the actors and crew. If anything should happen to them, free speech won’t get Nakoula too far as a defense.

Nakoula would likely respond that any dishonesty on his part is explained by his need for anonymity–that he was protecting his own safety. Anonymous speech is still protected speech after all. But it doesn’t explain how Nakoula’s need for anonymity necessitated putting his actors and crew in harm’s way, nor does it explain why he needed to blame The Jews for the film’s creation, given how those lies would most likely be inferred in middle east.

I’ll finish by disclaiming the idea that my criticism of Nakoula is equivalent to a defense or tacit endorsement of those rioting protesters, or somehow a denial that radical Islamic fundamentalism is a problem. Indeed it is, and the answer to this or any future problem won’t and can’t involve the curtailment of our own free speech rights. And unlike those who want to reduce this controversy to its simplest, falsely-equivalent narrative, I don’t think such as a reasonable fear at present.